Reasons Conservatives Might Use to Oppose Sotomayor Nomination

Obama's Judge Sonia Sotomayor pick for Supreme Court Justice has already started dredging up some controversy. Conservatives are raising concerns over Sotomayor's reputed potential for "judicial activism."

While there are a range of arguments conservatives have against Sotomayor, there are a few at the top which demand some exploration. I am sure we will be seeing these in the upcoming Senate confirmation hearings.

Sotomayor speaking at Duke Law School, 2005, "Courts are where policy is made."



This has the potential of showing Judge Sotomayor of having an attitude which is indicative that she feels a judge makes laws rather than interprets the law. It is the age old debate of an originalist versus judicial activist. Being of a conservative mindset, I am personally predispositioned to judges whom demonstrate the originalist philosophy.

Next on the radar is the highly contentious legal battle of Rici v. Stefan. A case where fireman, Frank Rici, and other firefighters sued the city of New Haven, Connecticut over alleged reverse discrimination. Here is the meat and potatoes of the case via, Judgepedia (?). (I guess they have a fill-in-the-blank pedia for everything nowadays.)

In 2003, the New Haven fire department was planning to fill seven openings at the captain level and eight openings at the lieutenant level. The city conducted a promotion exam designed by the Illinois company, Industrial/Organizational Solutions. 77 applicants took the exam. 19 of the applicants were African-American. None of the African-Americans scored high enough on the test to qualify for promotion to the positions of captain or lieutenant. The New Haven fire department scrapped the results of the test in order to ward off a lawsuit under Title VII of the Civil Rights Act of 1964 which allows minority workers to sue employers if they can establish that a promotion test exerted a "disparate impact" on minorities. Additionally, the federal Equal Employment Opportunity Commission has an "80% rule", which says that a job-related test in which the passing rate of a racial minority is less than 80% of the white rate is presumptively flawed.

Frank Ricci, a white firefighter who has been in the New Haven fire department for eleven years, scored 6th out of the 77 test-takers. According to Ricci's sworn statement, he gave up a second job to study 13 hours a day for the test. He is dyslexic, and he paid an acquaintance over $1,000 to read textbooks onto audiotapes. He also took practice tests, used flashcards he made, and participated in a study group and mock interviews.

After the test results were thrown out, Ricci and seventeen other white firefighters, including one Hispanic firefighter, sued in federal court on the basis that they had been discriminated against because of their race.

In the near future, Rici v. Stefan will actually be going in front of the Supreme Court for review. The outcome will undoubtedly be interesting to watch.

Another bit of ammo for conservatives was the SCOTUS reviewing five of her decisions and overturning three. This evidently brings up the doubts about her abilities to form proper legal interpretation.

From the Washington Times.

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

However, the totality of her record is another point brought up by White House Press Secretary, Robert Gibbs.

Mr. Gibbs dismissed questions about Judge Sotomayor's reversal rate, saying she wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.

Admittedly, I do not profess to know how many times it takes getting your decisions as a federal judge overturned by the Supreme Court to constitute a problem.

Something else that should be taken note of is the highly progressive and liberal New Republic's legal affairs editor, Frank Rosen, raised concerns about Sotomayor. Interesting article.

In all fairness, and an opportunity to link to a friend, Professor Darren Hutchinson, proprietor of the progressive and highly cognitive blog, Dissenting Justice, has a retort to Rosen's May 4th post. Also, you might want to notice, the Professor' rebuff was actually linked in a Judgepedia article on Sotomayor. Just thought that was kind of neat.

Related Articles: Here are some interesting analysis of the Sotomayor nomination from the SCOUTS Blog. Please note, these were not cherry picked to be for or against Sotomayor, these are the latest posts offered on the SCOTUS Blog which pertain to the Judge and her nomination, minus one post announcing her being the nominee.

The Dynamic of the Nomination of Sonia Sotomayor

Sotomayor’s Record: The Ricci Effect

Where Would Justice Souter’s Replacement Make A Difference? Part I

Sotomayor and the Second Amendment

Final Note: If you want my opinion on Sotomayor and her nomination, feel free to ask.